The claimant in this case was given an unfavourable reference by her former employer (Pothecary Witham Weld) and argued this was due to her previously bringing sex discrimination claims against the employer.

The tribunal agreed and found the employer had victimised the claimant. In coming to its decision, the tribunal applied the reverse burden of proof – in other words, the claimant proved facts from which the tribunal could conclude there was victimisation in the absence of an adequate explanation from the employer.

This meant that the employer then had to prove that it did not victimise the claimant, which it had not been able to do.

Does not apply?

The employer appealed to the Employment Appeal Tribunal (EAT) on the basis that the reverse burden of proof does not apply to victimisation claims.

It relied on the case of Oyarce v Cheshire County Council, which held that the reverse burden of proof does not apply to victimisation claims under the Race Relations Act.

The EAT held the reverse burden of proof does apply to victimisation claims under the Sex Discrimination Act because of the differences in the wording of the Race Relations Act and the Sex Discrimination Act.

The EAT found the tribunal had also been correct when it stated that the employer had to show not only that the sex discrimination claim was not the main or conscious reason for the unfavourable reference, but also that the claim had not influenced the employer significantly (either consciously or unconsciously).

Key points

The reverse burden of proof applies to victimisation claims under the Sex Discrimination Act.

The reverse burden of proof only applies under the Race Relations Act in cases of discrimination on the grounds of race or ethnic or national origins. It does not apply to victimisation under the Race Relations Act.

What you should do

Be aware that claims for victimisation could arise a long time after the employee’s employment has ended (four years in this case) and that the reverse burden of proof makes it difficult for employers as they have to ‘prove their innocence’.

Be careful when writing references, and in particular do not refer to employment claims brought by employees.